President and Senate, in exclusion of the House of Representatives, and is executed through the instrumentality of agents, delegated for the purpose. And although the President and Senate are thus invested with this high and exclusive control over all those subjects of negotiation with foreign powers, which, in their consequences, may affect important domestic interests, yet it would have been impossible to have defined a power of this nature, and, therefore, general terms only were used. These general expressions, however, ought strictly to be confined to their legitimate signification; and in order to ascertain whether the execution of the treaty-making power can be supported in any given case, those principles of the Constitution, from which the power proceeds, ought carefully to be applied to it. The power must, indeed, be construed in subordination to the Constitution; and however, in its operation, it may qualify, it cannot supersede or interfere with, any other of its fundamental provisions, nor can it ever be so interpreted as to destroy other powers granted by that instrument. A treaty to change the organization of the government, or annihilate its sovereignty, or overturn its Republican form, or to deprive it of any of its constitutional powers, would be void; because it would defeat the will of the people, which it was designed to fulfil.

A treaty, in its general sense, is a compact entered into with a foreign power, and extends to all matters which are usually the subject of compact between independent nations. It is, in its nature, a contract, and not a legislative act; and does not, according to general usage, effect of itself the objects intended to be accomplished

by it, but requires to be carried into execution by some subsequent act of sovereign power by the contracting parties, especially in cases where it is meant to operate within the territories of either of them. With us, however, a different principle is established. It has been settled by the Supreme Court,* that, inasmuch as the Constitution declares a treaty to be the law of the land, it is to be regarded in courts of justice as equivalent to an act of the Legislature, whenever it operates of itself without requiring the aid of any legislative provision. But when the terms of any treaty stipulation import an executory contract, it addresses itself to the political, and not to the judicial, department for execution, and Congress must pass a law in execution of the compact, before it becomes a rule for the courts. The Constitution does not expressly declare whether treaties are to be held superior to the acts of Congress, or whether the laws are to be deemed coequal with or superior to treaties; but the representation it holds forth to foreign powers, is that the President, by and with the advice and consent of the Senate, may bind the nation in all legitimate contracts; and if pre-existing laws, contrary to a treaty, could only be abrogated by Congress, this representation would be fallacious. It would subject the public faith to just imputation and reproach, and destroy all confidence in the national engagements. The immediate operation of a treaty must, therefore, be to overrule all existing laws incompatible with its stipulations.

Nor is this inconsistent with the power of

* 2 Peters, 314.

Congress to pass subsequent laws, qualifying, altering, or wholly annulling a treaty; for such an authority, in certain cases, is supported on grounds wholly independent of the treaty-making power. For, as Congress possesses the sole right of declaring war, and as the alteration or abrogation of a treaty tends to produce it, the power in question may be regarded as an incident to that of declaring war. The exercise of such a right may be rendered necessary to the public welfare and safety, by measures of the party with whom the treaty was made, contrary to its spirit, or in open violation of its letter; and on such grounds alone can this right be reconciled either with the provisions of the Constitution or the principles of public law. A memorable instance has occurred in our history of the annulment of a treaty by the act of the injured party. In the year 1798, Congress declared that the treaties with France were no longer obligatory on the United States, as they had been repeatedly violated by the French government, and our just claims for reparation disregarded. Nevertheless, all treaties, as soon as ratified by competent authority, become of absolute efficacy, and, as long as they continue in force, are bind ing upon the whole nation. If a treaty require the payment of money to carry it into effect, and the money can only be raised or appropriated by an act of the Legislature, it is morally obligatory upon the legislative power to pass the requisite law; and its refusal to do so would amount to a breach of the public faith, and afford just cause of war. That department of the government which is intrusted with the power of making treaties may bind the national faith at its dis

cretion; for the treaty-making power must be coextensive with the national exigencies, and necessarily involves in it every branch of the national sovereignty, of which the operation may be necessary to give effect to negotiations and compacts with foreign nations. If a nation have conferred on its executive department, without reserve, the right of treating and contracting with other sovereignties, it is considered as having invested it with all the power necessary to make a valid contract, because that department is the organ of the government for the purpose, and its contracts are made by the deputed will of the nation. The fundamental laws of the state may withhold from it the power of alienating the public domain, or other property belonging to it; but if there be no express provision of that kind, the inference is that it has confided to the department, charged with the duty and the power of making treaties, a discretion commensurate with all the great interests of the nation.*

The concurrence of each branch of the legislative power, we have seen, is necessary to a declaration of war, while the President, with the advice and consent of the Senate alone, may conclude a treaty of peace. Now a power to make treaties necessarily implies a power to settle the terms on which they shall be concluded; and foreign states could not deal safely with the government on any other presumption. That branch of the government which is intrusted thus largely and generally with authority to make valid treaties of peace, can, of course, bind the nation by the alienation of part of its

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territory; and this, according to an approved wri ter on the law of nations,* is equally the case, whether that territory be already in the occupation of the enemy, or remain in possession of the nation, or whether the property be public or private. In a case decided in the Supreme Court of the United States, it was admitted that individual rights acquired by war, and vested rights of the citizen, might be sacrificed by treaty for national purposes.† And in another case it was held to be a clear principle of national law, that private rights might be surrendered by treaty to secure the public safety, but the government would be bound to make compensation and indemnity to the individual whose rights had thus been sacrificed.

The conclusion of a treaty of commerce and navigation with Great Britain, in 1794, gave rise to much public discussion as to the nature and extent of the treaty-making power. A resolution was passed by the House of Representatives requiring the President to lay before them a copy of his instructions to the minister who conducted the negotiation, with the correspondence, and other documents, relative to the treaty, except. ing such papers as any existing negotiations might render it improper to disclose. The illustrious individual who then held the office of President returned for answer, "that, in his opinion, the power of making treaties was exclusively vested in the President, by and with the advice and consent of the Senate, provided two thirds of the senators present concurred in the ratification; and that any treaty so made and ratified, * Vattel, b. i., ch. xxi., § 2, 32; b. iv., ch. ii., § 11, 12. t1 Cranch., 103.